With Facebook, Twitter in the Crosshairs of Investigators Probing Russian Interference, Let’s Consider The Risks of Applying Election Ad Rules to the Online World

Social media platforms are avenues for typical Americans—those without enough money to purchase expensive television or radio ads—to make their voices part of the national political dialogue. But with news that a Russian company with ties to the Kremlin maintained hundreds of Twitter accounts and purchased $100,000 worth of Facebook ads aimed at influencing American voters—and specifically targeting voters in swing states like Wisconsin and Michigan—these same social media companies are now at the center of a widening government investigation into Russian interference in the 2016 election.

This controversy has also sparked renewed calls for more government regulation of political ads on social media and other online platforms—including creating news rules for Internet ads that would mirror those the FEC and FCC currently apply to political ads on TV, cable, and radio. In the past, policymakers proposed essentially extending the broadcast rules to the Internet without adequately and thoughtfully considering the differences between the broadcast and online worlds. As a result, we argued for limiting the burden on online speakers from campaign finance regulations in both 2006 and 2014.

We can’t emphasize enough what’s at stake here. Social media and digital communications have an enormous role in elections. On the whole, this is a good thing, because it creates many new avenues for Americans to communicate, share, participate, debate, and organize. Online speech rules must maintain our ability to speak out—anonymously if we choose—about candidates, elections, and issues. At the same time, American elections should be decided by Americans and not subject to foreign influence. The rules that surround our elections should be carefully created to protect American voters and not just at the moment of voting. Our right to participate and voice our opinions must not be compromised on the way to preventing foreign intervention in our elections.

The Problems With Proposals to Blindly Apply Offline Regulation to Online Speech

We’re still in the early stages of this latest round of policymaking. Before moving forward, regulators and lawmakers and the public need to consider the risks of applying election rules designed for broadcast to the Internet—along with the following basic and long-standing principles: enforce existing laws first, make sure that any applicable laws are tailored to the difference in size and resources of various speakers and platforms, and protect Americans’ right to participate in the public debate, including anonymously. EFF will evaluate any proposals to make sure they adhere to the following long-standing principles.

1. It is already illegal for agents of foreign governments to buy electioneering ads. Stronger and speedier enforcement of existing laws is a better strategy than more regulation.

Stronger enforcement of existing laws, supported by more funding and support for powerful and swift FEC enforcement efforts—including Department of Justice follow up with criminal charges for serious offenses—is the best first step for any Congressional action.

The core concern driving the current proposals is election interference by foreign governments. Our existing election laws already prohibit foreign governments like Russia or their agents from purchasing campaign ads—online or offline—that directly advocate for or against a specific candidate. In addition, for 60 days prior to an election, foreign agents cannot even purchase ads that mention a candidate. Finally, the Foreign Agent Registration Act also requires information materials distributed by a foreign entity to contain a statement of attribution and copies must be filed with the U.S. Attorney General.

Our election commissions, and possibly law enforcement, should already be looking deeply into potential violations of these laws during the 2016 election. Facebook and the other platforms should be cooperating with those investigations, as the law requires.

Additionally, political campaigns are required to report their spending, yet that reporting often trails the actual purchases of ads for so long that the information is not helpful during the heat of the election. The penalties are also notoriously weak and slow, making too many of them merely afterthought for campaigns.

We plainly need stronger enforcement of these laws, including both catching violations in time to block their influence and ensuring real consequences for those involved. It’s pretty clear that Russia doesn’t care that its interference with our elections is illegal, so it won’t care if it’s doubly illegal, but many of the agents who purchased these ads may be subject to U.S. enforcement actions. We may also need to consider how to make ad purchase information by campaigns more readily visible to the voters

2. On the Internet, one size does not fit all.

Don’t apply rules designed for large entities to smaller ones. Don’t apply rules based on high-cost advertising to low-cost advertising.

One big difference between online and broadcast media: broadcast media is largely owned by a relatively few big companies. And while Facebook and Google are certainly large companies and there are several large ad placement firms online, the Internet is full of smaller platforms, websites, and blogs that have a range of sponsorship models. Applying FEC campaign finance rules designed for large companies to small platforms and individuals doesn’t make sense and can perversely further entrench the power of those large companies..

The FEC’s campaign finance rules applicable to TV and radio advertising are based on the fact that these broadcast media utilize the scarce public spectrum. The rules are long, complex, and require significant paperwork and accounting structures, lawyers, and other significant resources. These rules make sense when applied to a handful of giant media companies that are already heavily regulated, that now control the vast majority of TV and radio in the United States, and that have the resources needed to handle onerous tracking and reporting requirements. 1

In addition, TV and radio ads with big reach are prohibitively expensive for small purchasers. Those with less than $500,000 to spend will probably find themselves shut out of all but the most obscure corners of TV and those with less than $100,000 will have a hard time purchasing national or even regional radio ads. This also helps keeps the universe of those who have to comply with the rules quite small and makes it less troubling that complying with the rules requires accounting structures, lawyers, and other significant resources.

Of course the Internet also has gigantic corporate players—Google, Facebook, and even mid-sized companies like Twitter and Reddit that can likely handle the burden of reporting on major advertising purchases, whether singly or aggregated. Some of the big advertising networks may be able to do so, too.

But the revolutionary thing about the Internet is that you don’t need millions of dollars to make your voice heard. The Internet has millions of small websites, podcasts, blogs, and other outlets where people can and do discuss elections and politics. Ordinary individuals without ready access to big cash can purchase Internet ads, and for little or no cost they can create YouTube videos and post banners on their personal websites to express support for particular candidates, parties, or issues. In this way, the Internet is less like radio and TV and more like print publications or even handbills—where there are many publications and the cost of ads are less.

It is critical that any effort to consider applying the FEC’s offline rules to the online world differentiate between big platforms, like Facebook and Google, and smaller ones, and between platforms and their users. A podcaster doesn’t have the resources of Apple even if her podcast is available from iTunes, and a Twitter personality doesn’t necessarily have the resources of Twitter even if she has hundreds of thousands of followers.

The risk in not understanding the Internet landscape is serious. Extending the TV and radio election rules to small speakers and free and low-cost Internet speech will discourage these smaller entities from allowing or engaging in political expression at all. If regulation is not done carefully, it could undermine one of the great gifts of the Internet—allowing those without great financial resources to make their voices heard about the candidates and issues they’re passionate about. This could also end up entrenching both large Internet companies and large broadcasters (most of whom operate online, too) even more than they already are.

3. Anonymity speech is critical for democracy.

Regulations that infringe on anonymous speech will do more harm than good

Congress and regulators also need to consider the risks to privacy and anonymity of wholesale application of TV and radio disclosure rules to Internet ads and online speech. Anonymity is critical for democracy, as it’s a tool for those in the minority to safely voice their dissent. Speaking out on issues of public concern can be dangerous, and throughout our country’s history, speakers in favor of issues as wide-ranging as civil rights, reproductive rights, and religious freedom have all relied on their First Amendment right to speak anonymously in order to safely make their voices heard. Anonymous speech even played a key role in the founding of the United States: the authors of the Federalist Papers hid their identities for fear of retaliation. And courts have recognized that anonymous speech on the Internet “facilitates the rich, diverse, and far ranging exchange of ideas” and “can foster open communication and robust debate."

Unfortunately, many initial suggestions about how to respond to and prevent Russian interference start from the premise that all speakers online must be positively identifiable. Some at the FEC argue that the identity of all who publish endorsements, even free ones, on a website must be made public. Such proposals would place an onerous burden on the small Internet publishers and platforms discussed above.

Not only are proposals that unduly burden anonymous political speech unconstitutional, but they simply don’t work. Study after study has debunked the idea that forcibly identifying speakers is an effective strategy against those who spread bad information online. And Facebook has had a real name policy, requiring all users to use their real name, for years. It didn’t stop Russia. But it does hurt innocent people—including drag queens, LGBTQ people, Native Americans, survivors of domestic and sexual violence, political dissidents, sex workers, therapists, and doctors.

Any rules aimed at protecting our election from foreign intervention should not infringe on the rights of Americans to engage in public debate without being forced to identify themselves or disclose other sensitive personal information.

What Can Be Done?

While blindly extending offline rules to the online environment is a dangerous course, there is much that can be done, especially by Internet companies. Here are a few ideas:

1. Companies should do more to address malicious bots and other tools of channel flooding.

One of the techniques that we’re hearing a lot about is the use of bots, fake online accounts programmed to post messages automatically and mimic a real person’s identity. Not all bots are bad, but they and similar tools can be used to manipulate public opinion by creating a sense of a mass movement where there is none. It’s suspected that Russia used this tactic to disrupt the 2016 election.

The malicious use of bots is a problem that platforms can and should do more to address. Companies like Facebook already spend resources tracking bots when they involve spammers and other kinds of detrimental behaviors. While the problems are not identical, they share enough similar traits that the companies should be able to make progress through some concentrated effort to make locating and shutting down these strategies. Like many things, this will always be a cat and mouse game, but the companies can certainly better prioritize rooting out these malicious political bots, especially as an election approaches.

2. Users deserve to know why they are being served certain ads.

Another important way companies can step up right now is by being transparent about how they decide which ads to serve which users. Partly in response to a crowd-sourced campaign led by ProPublica, Facebook is taking some first steps in this direction. But the company has a long way to go. Facebook and other companies need to provide their users with real information—not vague policies or protocols—about why we are seeing the ads we are seeing. For election-related and political ads, arguing that ad placement processes and the tracking that underlies them are “proprietary” just doesn’t cut it anymore. If Facebook, Google and other companies want us to trust them to protect the democratic process going forward, they need to be transparent about how they are choosing the information they are feeding us.2

3. Facebook and other companies need to allow independent auditing.

To truly get to the bottom of things, we also need analysis by independent researchers—with no bottom line or corporate interest. Facebook, Google, and others should let truly independent researchers work with and audit their data. Right now, only Facebook has access to the data that can reveal exactly how Russian and other agents used the platform to spread divisive news, hoaxes, and misinformation—including how much of it there was, who created and read it, and how much influence it may have had. Facebook exercises complete control over independent researchers’ access to this data. There are of course serious privacy considerations that must be dealt with, but leaving the analysis to these locked-up platforms is what allowed Mark Zuckerberg to deny there was even a problem for ten whole months after the election. This is plainly not sufficient.

Going Forward

EFF will be evaluating proposals based on the principles and concerns noted above, and we’ll be keeping a close eye on the companies too.

2. Facebook could even go a step further by doing two things: first, give users more power to avoid being tracked in the first place and second, open up the feed – let users have an API so that they can create and curate their own Newsfeeds, making it harder for foreign agents to simply buy ads on one or two platforms and thereby reach millions of Americans. We know these are not likely to be adopted by Facebook, but it’s important to keep in mind that the “total surveillance” business model of Facebook and its continued embraced of a closed ecosystem both contribute to the difficulty of solving these problems.

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